Opinion: Daily Journal

Complaints about gerrymandering hide critique of basic American electoral rules

The debate over gerrymandering’s negative impact took a particularly silly turn this month, when some pundits credited the partisan map-drawing process for helping Republicans build their majority in the U.S. Senate.

All U.S. senators run in statewide races. They face no electoral districts subject to potential partisan map-drawing mischief. Thus gerrymandering plays zero role in U.S. Senate contests.

But even people with a better understanding of gerrymandering have tended to overemphasize its impact. They don’t seem to realize that addressing the gerrymandering problem wouldn’t necessarily generate the electoral outcomes they desire.

Take, for instance, the arguments two staffers at New York University Law School’s Brennan Center for Justice put forward recently in a Raleigh News and Observer column. The authors purported to explain, according to the headline, “How the Republican gerrymander blocked the blue wave in N.C.”

Before focusing on gerrymandering, it makes sense to address the notion that 2018 election results reflected any kind of “wave.” While Democrats definitely enjoyed an edge, their overall performance in U.S. House and Senate contests, as well as races for governor and legislative seats nationwide, fit fairly well with historical patterns for the first midterm of a new presidential administration.

“If we’re just going to count every time that one party does better than the other party as a ‘wave election,’ we’re going to be waving a lot,” as John Locke Foundation Chairman John Hood declared in a Nov. 12 post-election analysis.

Regardless of whether Democrats enjoyed a “wave,” “splash,” or some other aquatic event, they outpolled GOP adversaries in many electoral contests. But they made no dent in North Carolina’s delegation to the U.S. House of Representatives. Before the election, that delegation featured 10 Republicans and three Democrats. The 2019 Congress will maintain the same partisan split.

That’s the fact that bothers the Brennan Center writers. “Democrats won roughly 50 percent of the vote in North Carolina, their best performance in almost a decade,” according to the column. Yet “despite an extraordinary year,” Democrats were unable to flip a single N.C. congressional seat from red to blue.

Before delving further into the argument, it’s worth noting that these outside observers consider it “extraordinary” for Democrats to win “roughly” 50 percent of the statewide congressional vote. (Very rough, as it turns out. Democrats actually secured about 48 percent of the statewide congressional vote. In the authors’ defense, Republican Walter Jones ran unopposed in the 3rd District, allowing no Democrats to cast ballots to counteract his vote total. Democrats’ overall vote total was artificially low. Still, 48 percent support is not the same as a 50-50 split.)

The column also reminds us that Democrats accomplished this “roughly 50 percent” milestone for the first time in nearly a decade. Intentional or not, the authors admit that N.C. voters have tended to cast more ballots for Republican congressional candidates than for Democrats in recent years. This fact contradicts a narrative popular among some gerrymandering foes: that Republicans have won majorities among the congressional delegation only because of mapmaking malfeasance.

The columnists go on to make the following claim: “Democrats didn’t stand a chance of picking up a fourth seat unless they could net 52.5 percent of the statewide vote, something they achieved only once since 2000, in the 2008 election.”

That calculation might strike Mark Harris and Dan McCready as odd. Both of those men know well that it would have taken roughly another 900 votes for the Democrat McCready to have defeated the Republican Harris in the hotly contested 9th Congressional District. That’s a far smaller sum than the roughly 37,000 votes needed to change a statewide vote total by even a single percentage point.

The discrepancy highlights a problem common to gerrymandering complaints. Those issuing the complaints focus less on individual contests than on statewide vote totals. They suggest that the number of representatives each major party sends to Congress ought to mirror the total percentage of congressional votes cast for that party statewide.

If Democrats and Republicans wage a close contest for the total congressional vote in North Carolina, the argument goes, then the House delegation should alternate between a 7-6 margin favoring Republicans and a similar split favoring Democrats. Only if one party reached the rare milestone of securing more than 60 percent of the total vote would an 8-5 split be warranted.

That argument makes perfect sense for a state and nation that select members of the legislative branch of government through proportional representation. Under such a system, parties split legislative seats in rough proportion to their vote totals throughout the electorate.

Many countries use that system. The United States does not.

As recently as 2006, then-U.S. Supreme Court Justice Anthony Kennedy wrote for the majority in the LULAC v. Perry case: “To be sure, there is no constitutional requirement of proportional representation.”

Instead, this state and nation rely on a “first-past-the-post” system. Candidates, not parties, compete in specified geographic districts. The candidate who secures the most votes wins in each district.

That system can lead to wide disparities between a party’s statewide vote total and its share of the congressional seats. In North Carolina today, if Democrats won every congressional race by a margin of 50.5 percent to 49.5 percent, the delegation would feature 13 Democrats and zero Republicans. That result would have nothing to do with gerrymandering.

The liberal group Common Cause provided evidence supporting this argument in 2016. The group worked with Duke University and a bipartisan group of retired N.C. judges to devise a set of “fair” congressional election districts. The resulting map produced six “likely” Republican congressional districts, four Democratic districts, and three toss-up districts.

In other words, under normal electoral circumstances, with the two parties splitting the statewide vote evenly, the “fair” districts could produce a congressional delegation swinging anywhere from a 7-6 Democratic advantage to a 9-4 GOP edge. And that map took no account of the impact of incumbency or the relative strength or weaknesses of particular candidates.

This result should surprise no one who watched in 2016 as Republican Donald Trump beat Democrat Hillary Clinton in North Carolina. Trump won by a 52-48 margin, omitting third-party candidates, while also winning 76 of the state’s 100 counties. Had each of those counties corresponded to an electoral district, Trump’s four-point victory margin would have translated into a 3-to-1 electoral advantage. Gerrymandering would have played no role in reaching that result.

Geographic districts favor Republicans in this state in a way that proportional representation does not. People complaining that a closely split electorate fails to produce a closely split congressional delegation are taking issue with a basic element of our centuries-old electoral process. Their concerns about gerrymandering mask that larger complaint.

Regardless of the evidence tied to its own work on this issue, Common Cause is suing state legislative leaders. In separate cases in both federal and state court, the group and its allies challenge congressional and legislative election maps as unconstitutional partisan gerrymanders. The ultimate goal: new maps that produce an electoral split aligning more closely with results that reflect proportional representation.

Voters are likely to see new maps again in 2020. New census data will require new electoral maps again for 2022. But it’s unclear whether any new maps with geographic districts will produce results that satisfy Common Cause, the Brennan Center, or other critics of the longstanding first-past-the-post electoral system.

Mitch Kokai is senior political analyst for the John Locke Foundation.